Nortje v Fakie (AR643/10) [2011] ZAKZPHC 15; 2013 (1) SA 577 (KZP) (7 April 2011)

Nortje v Fakie (AR643/10) [2011] ZAKZPHC 15; 2013 (1) SA 577 (KZP) (7 April 2011)

The court held that Clause 12 of the agreement conferred the right to give notice of mora exclusively on the conveyancer, who acts independently for both parties. The appellant, as seller, did not have the right to give such notice herself, and the notice sent by her attorney was invalid for the purposes of Clause 12. The contract provided two independent avenues for compelling compliance: the conveyancer's notice under Clause 12 and the seller's remedies under Clause 15. The appellant's alternative claim in delict was rejected, as the contract provided adequate remedies for breach and extending Aquilian liability would undermine the contractual arrangements. The appeal was dismissed and...

Citation
[2011] ZAKZPHC 15
Parties
Appellant: J. L. Nortje; Respondent: M. Fakie
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
7 April 2011
Case Number
AR643/10
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Preliminary Ruling
Outcome
Appeal dismissed with costs awarded to the respondent.
Judges
Swain, Booyens
Legal Topics
Contractual Notice Requirements, Mora Interest, Role of Conveyancer, Delictual Liability, Breach of Contract
Civil Procedure Land and Property Contractual Notice Requirements Mora Interest Role of Conveyancer Delictual Liability Breach of Contract

Case Brief

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Parties

J. L. Nortje

Appellant

M. Fakie

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Preliminary Ruling

Legal Issues

  1. 1 Whether the appellant's notice in terms of Clause 12 was valid when sent by the attorney rather than the conveyancer.
  2. 2 Whether the appellant's alternative cause of action in delict is sustainable in law.

Ratio Decidendi

The court held that Clause 12 of the agreement conferred the right to give notice of mora exclusively on the conveyancer, who acts independently for both parties. The appellant, as seller, did not have the right to give such notice herself, and the notice sent by her attorney was invalid for the purposes of Clause 12. The contract provided two independent avenues for compelling compliance: the conveyancer's notice under Clause 12 and the seller's remedies under Clause 15. The appellant's alternative claim in delict was rejected, as the contract provided adequate remedies for breach and extending Aquilian liability would undermine the contractual arrangements. The appeal was dismissed and...

Court Disposition

Appeal dismissed with costs awarded to the respondent.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the respondent's costs.